During one of my many explorations of the net, I found mention of a program called TimeTrax, a program which converts songs broadcast over XM Satellite Radio into mp3 files that you can play on your computer. This is especially nifty since XM radio doesn’t have DJ’s or the like, and you end up with nice, clean MP3 files.

Not surprisingly, the RIAA is a bit upset about this. Quoting:

A spokesman for the Recording Industry Association of America said his organization had not reviewed the software, but said that in principle it was disturbed by the idea. “We remain concerned about any devices or software that permit listeners to transform a broadcast into a music library,” RIAA spokesman Jonathan Lamy said.

Not surprising, but just what do they expect to be able to do about?

The program matches digital information including the artist name and then takes the analog music and encodes them into a properly named and tagged mp3 file. This is another instance of time shifting: a type of fair use established in the case Sony Corporation v. Universal Studio Productions, 1984. This Supreme Court decision (5-4) held that non-commercial home use recording is fair use. If I want to record every episode of a show, I can do so, for my own personal home use.

It’s also completely unclear that this program represents any kind of DMCA violation, since you are required to purchase service from XM radio. No copy protection is being circumvented: you are merely re-encoding the analog stream produced by the XM PCR radio.

The most damning thing against XM PCR is the XM Radio service agreement, which includes the following:

b) Use Limitations.
You may not reproduce, rebroadcast, or otherwise transmit the programming, create unauthorized recordings of the programming, charge admission specifically for the purpose of listening to the programming, or distribute play lists of the Service. Notwithstanding the provisions of Section 9, we or any of our programming partners may prosecute violations of the foregoing against you and other responsible parties in any court of competent jurisdiction, under the rules and regulations of the FCC, and other applicable laws. Subscription to the Service does not grant you the right to use any of our or our partners’ trademarks.

In other words, they can claim that you aren’t allowed to timeshift. But can they really have any legal standing upon which to base this restriction? HBO thinks they can enforce similar restrictions. It’s vaguely possible that XM could sue their customers for their unauthorized home recordings which are in violation of their service agreements, but I (and I am not speaking as a lawyer, so my opinion is worth zilch) fail to see how the RIAA can involve themselves in essentially a licensing dispute. If my understanding of the law is correct (again, caveat reader), they can’t even deny XM radio access to their material, as such licensing and its cost are set by statute, not by negotiation.

It will be interesting to see how this plays out.